Employee wellbeing: Life events – Are you an employer of choice?

In our third article in our Employee Wellbeing series we focus on the support which can be provided to employees who experience a miscarriage or stillbirth, or who have a baby who needs to spend time in neonatal care.

Miscarriage and stillbirth: The legal rights and obligations

A miscarriage is the loss of a baby during the first 23 weeks of pregnancy. It is estimated that 1 in 8 pregnancies will end this way[1] and, as a result, many women, and their partners, across UK workplaces will unfortunately be directly impacted during their working lives.  Employers need to recognise this and develop an informed and sensitive approach to ensure that their employees receive appropriate support.

Employees who tragically experience a miscarriage which leads to a period of sickness absence from work are entitled to the same benefits as they would receive for any other sickness (e.g. statutory or company sick pay).

Partners of individuals who have had a miscarriage may be entitled, under s 57A of the Employment Rights Act 1996 (ERA), to take reasonable time off to “provide assistance when a dependant falls ill.”

Importantly, an employee who has a stillbirth after 24 weeks of pregnancy, or whose baby dies shortly after birth, is entitled to their full period of statutory maternity leave and pay. In addition, the employee is entitled to statutory parental bereavement leave and possibly pay, permitting them to take up to two weeks off work, which can be taken at any point during the 56 weeks after the stillbirth or death.

Partners are again likely to be entitled to time off under s 57A ERA, which also applies where a dependent gives birth or where a dependent dies. Statutory parental bereavement leave will also be available and, if they have 26 weeks’ service ending 15 weeks before the expected week of childbirth, they are also entitled to statutory paternity leave and pay.

Parents of babies in neonatal care

Approximately 1 in 7 babies every year require neonatal care after birth.[2] At present, parents of babies needing care in neonatal units often have to rely on their statutory maternity and paternity leave entitlements in order to spend time with their baby in hospital, instead of using that leave for its intended purpose: to bond with their baby and care for them at home.

However, new legislation on neonatal leave and neonatal pay is expected to come into force in 2022-2023. It is expected that the following changes will be introduced (but may be subject to change):

• From day one of their employment, parents of neonates (babies who are 28 days old or less) who have been admitted to hospital will be entitled to statutory neonatal leave (SNL) if the duration of the admission is for seven days or more;
• Employees who have a certain amount of continuous service and minimum earnings (yet to be specified) will also be entitled to statutory neonatal pay (SNP).
• The amount of SNL/SNP will likely be capped at 12 weeks.

Why support matters

The loss of a child at any stage is extremely distressing for both the affected partners, as is the hospitalisation of a neonate. Poorly-supported employees may find it difficult to return to work: for example, a recent survey by the Miscarriage Association found that 40% of those surveyed felt the lack of support offered by their employers had a detrimental effect on their work after they had returned from a miscarriage, and 11% left their job entirely. Given that these events affect both partners and, unfortunately, are not unusual, employers risk losing talent from their workforce by failing to provide the necessary support.

As a parent of a child born at 28 weeks’ gestation, requiring 10 weeks’ neonatal care before coming home, one of DLA Piper’s Employment lawyers, Bethan Odey, takes a particular interest in the support employers can provide in these situations. As Bethan says, “having first-hand experience of the stress, emotion and exhaustion of caring for a baby born prematurely, a supportive employer makes a significant difference to a parent’s ability to move on from such a traumatic event, enjoy the remainder of their maternity leave and return to work at the end of that leave”.

In addition, failing to provide affected individuals with the support required by law (as outlined above) invites discrimination and unfair dismissal claims, or allegations that those employees have been subject to a detriment. Unsurprisingly, as awareness of employment rights has increased, and tolerance of an absence of support has decreased, the number of tribunal claims against employers has risen.

What can employers do?

Many employers are becoming increasingly attune to the need to support parents who are affected  during, or after pregnancy, by potentially traumatic and sensitive issues relating to neonatal care of their baby or the death of their child.  Employers who demonstrate compassion and understanding will undoubtedly become employers of choice to whom the best talent will gravitate.

Although there is a legal framework providing employees with certain protections, in many ways the protections are limited and arguably not fit for purpose.  Employers should therefore review their approach and consider joining the increasing number of companies which have implemented neonatal and miscarriage policies. These policies may include providing employees with additional leave and pay to support attendance at appointments and/or to process the emotional and physical effects of such losses. For example, some companies have already signed up to The Smallest Things: Employer with Heart Charter, thereby committing to extend leave by the number of days a baby was born prior to their due date and giving partners two weeks’ paid compassionate leave on the birth of their premature baby.

A policy may also outline the reassurance and support for employees who begin to physically experience a miscarriage or pre-term birth whilst they are at work. Such individuals may be in pain, experience heavy bleeding and require medical attention. Employers should ensure that measures are in place to support affected individuals whilst maintaining their privacy. Further information on general support that can be provided to employees affected by this can also be obtained from the Miscarriage Association, Sands, Tommy’s or Bliss.

As we emerge from the COVID-19 pandemic and employees are increasingly reassessing their priorities and their expectations of their employers, now is the time for employers to review their approach in this area. Putting the health and wellbeing of employees up front and centre provides a strong foundation for employee relations which, in turn, ultimately drives productivity and enhances business reputation.

DLA Piper’s Employment team can advise you on your business’ approach to miscarriage, stillbirth and neonatal treatment and assist you with implementing an appropriate policy as well as providing training to your staff. For further information, please speak to your usual DLA Piper contact or email employment@dlapiper.com.

You may also wish to fully review your organisation’s diversity and inclusion strategy, and your compliance with legal obligations, by completing the DLA Piper Diversity and Inclusion Index.

Our Employee Wellbeing series:

• The business case for employers reviewing their strategy on employee support;
• The menopause: A business critical issue for employers;
• Supporting employees undergoing fertility treatment (coming soon);
• Domestic abuse: Providing support and empowering employees (coming soon).

[1] https://www.nhs.uk/conditions/miscarriage/#:~:text=Among%20women%20who%20know%20they,around%201%20in%20100%20women.

[2] https://www.improvingme.org.uk/neonatal/#:~:text=Approximately%201%20in%207%20babies,born%20at%20a%20low%20birthweight.